United States v. Benally

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 24 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 96-2296
v.
(D.C. No. CR-95-584-SC)
(District of New Mexico)
JONATHAN BENALLY,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, McWILLIAMS and LUCERO, Circuit Judges.
Jonathan Benally seeks the reversal of a jury verdict finding him guilty of
second degree murder. He asserts that the district court erred in instructing the
jury on voluntary manslaughter and improperly denied his request for an
instruction on involuntary manslaughter. Additionally, defendant argues that the
district court abused its discretion by refusing to reduce his offense level for
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
acceptance of responsibility. We have jurisdiction pursuant to 28 U.S.C. § 1291
and affirm.
I
On the night of October 3, 1995, Jonathan Benally, Arvin Benally and
Rodrick Benally gathered at Arvin’s house in Shiprock, New Mexico to talk and
drink. After consuming a quart of malt liquor each, they drove to the Thriftway
store in nearby Hogback to purchase three more quarts for the group. At the store
they met up with Cheryl Largo and her sister, Christina Talk. The five decided to
drive to a hill near Shiprock to talk, drink and listen to music. Shortly thereafter,
Jonathan and Arvin left to purchase a half pint of whiskey. While Jonathan and
Arvin were gone, Russell John, who lived nearby, walked up to Rodrick, Cheryl
and Christina, introduced himself and offered them some vodka.
When Jonathan and Arvin returned, the four men engaged in friendly
conversation. After finishing his vodka, Russell asked if anyone wanted to go on
a beer run and stated that he had $20. He then offered to get marijuana for the
group and left.
While Russell was gone, Jonathan proposed that they should take the $20
when he returned. Arvin agreed. When Russell returned, he admitted that did not
have any marijuana. According to Rodrick, both Jonathan and Arvin were upset
at this news. Rodrick testified at trial that Jonathan suddenly threw Russell to the
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ground “for no apparent reason.” R., Vol. V, at 164-65. Russell then threw an
object at Jonathan and missed. He got back to his feet and started wrestling
Jonathan. He then threw a punch, striking Arvin in the face and knocking his
glasses off.
Jonathan tackled Russell, sat on top of him and proceeded to punch him
repeatedly in the face. Arvin struck and kicked Russell before Rodrick restrained
him. When Rodrick turned to restrain Jonathan, Arvin struck Russell again.
Once again Rodrick restrained Arvin and Jonathan renewed his attack. Jonathan
then proceeded to pull down Russell’s pants and kick him in the groin. The two
men then rolled Russell onto his stomach. Arvin kicked Russell and again was
restrained by Rodrick. Jonathan then made cutting and stabbing motions on
Russell’s buttocks and searched through his pants. He then stood and kicked
Russell some more.
After the fight, they left Russell on the hill and all five met at the local
junior high school. They agreed to lie as to their whereabouts that night. At trial,
a statement made by Cheryl to the police was read to the jury. In that statement,
she recounted that at the school, Jonathan “looked at his fist and kept saying
that’s what he likes to see.” R., Vol. VI, at 226. She testified at trial that his fist
was bloody. Christina, in a statement read to the jury, recalled that Jonathan
“kept bragging that they did killed that guy.” Id. at 261.
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Arvin and Rodrick then returned to the hill to search for Arvin’s glasses.
According to Rodrick’s testimony, Arvin wanted to strike Russell again, but
Rodrick stopped him. Rodrick also testified he could not hear Russell breathing.
The next morning, Russell’s wife and her sister discovered his body. He
was lying face down with his pants around his ankles. At trial, the forensic
pathologist who examined the body testified that death resulted from blunt force
injuries to the head and neck which produced herniation of the brain, that is, his
brain swelled through the base of his neck. The swelling was caused by bleeding
in the head and neck area and from a fractured voice box which hampered
breathing, blocking oxygen flow to the brain.
After a police investigation, Jonathan was charged with first degree murder
in violation of 18 U.S.C. §§ 1153 1 & 1111(a), and aiding and abetting first degree
murder in violation of 18 U.S.C. § 2. At the conclusion of the jury trial, the
district court instructed the jury as to first degree murder as well as to the lesser
included offenses of second degree murder and voluntary manslaughter. The jury
returned a verdict of guilty as to second degree murder.
II
1
Section 1153 provides for the application of select criminal laws (including
murder and manslaughter) to crimes by Native Americans in Indian country. At trial, it
was stipulated that both Jonathan Benally and Russell John were enrolled members of the
Navajo tribe and that the alleged offense occurred within the boundaries of the Navajo
Indian Reservation in the state of New Mexico. See R., Vol. VI, at 288-89.
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Defendant argues that the district court improperly instructed the jury on
voluntary manslaughter. The jury was instructed that,
[V]oluntary manslaughter is the unlawful killing of a human being
without malice upon a sudden quarrel or a heat of passion. . . . The
difference between second-degree murder and voluntary
manslaughter is sufficient provocation. . . . Sufficient provocation
reduces second-degree murder to voluntary manslaughter. Sufficient
provocation can be any action, conduct, or circumstance which
arouse[s] anger, rage, fear, sudden resentment, terror, or other
extreme emotions. The provocation must be such as would affect the
ability to reason and to cause a temporary loss of self control in an
ordinary person of average disposition.
R., Vol. VII, at 388-89. Defense counsel objected to the court’s definition of
provocation: “I’m concerned that the real standard is — the real standard
regarding the matter of provocation that you’ve [instructed] is for a reasonable
person in the same or similar circumstances.” Id. at 421.
Because the district court is granted substantial latitude and discretion in
tailoring and formulating jury instructions, we uphold its exercise of discretion as
long as the instructions as a whole are correct statements of the law and fairly
cover the issues presented. See United States v. Bryant, 892 F.2d 1466, 1468
(10th Cir. 1989). In reviewing defendant’s claim, we must decide not whether the
instruction was faultless, but whether the jury was misled in any way and whether
it had an understanding of the issues. United States v. Voss, 82 F.3d 1521, 1529
(10th Cir.), cert. denied, 117 S. Ct. 226 (1996). Under this standard of review,
we cannot conclude that the instruction given by the district court was confusing
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or legally incorrect. Cf. United States v. Collins, 690 F.2d 431, 437 (5th Cir.
1982) (“the provocation must be such as would arouse a reasonable and ordinary
person to kill someone”) (citing United States v. Chapman, 615 F.2d 1294 (10th
Cir. 1980)); United States v. Eagle Elk, 658 F.2d 644, 649 (8th Cir. 1981)
(sufficient provocation is that which “would cause the ordinary reasonable person
to act rashly and without deliberation and reflection”) (citing 2 E. Devitt & C.
Blackmar, Federal Jury Practice and Instructions § 41.14 (1977)). Defendant’s
claim is essentially a dispute over word choice, and it is well-established that a
defendant is not entitled to any specific wording of instructions. United States v.
Hoffner, 777 F.2d 1423, 1426 (10th Cir. 1985). The district court’s instructions,
taken as a whole, properly informed the jury of the law and were not misleading.
Defendant raises for the first time on appeal a second claim related to this
instruction. Because he failed to object to the instruction on this basis at trial, we
review only for plain error. See United States v. Mason, 85 F.3d 471, 472 (10th
Cir. 1996). He claims that the district court erred when it stated that, “the
difference between second degree murder and voluntary manslaughter is
sufficient provocation.” R., Vol. VII, at 388. Defendant contends that “the most
critical and defining characteristic of voluntary manslaughter is . . . intent without
malice,” not “sufficient provocation.” Appellant’s Br. at 13. Sufficient
provocation and malice are, however, closely related: sufficient provocation
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negates malice. See United States v. Scafe, 822 F.2d 928, 932 (10th Cir. 1987)
(“Malice is negated by the heat of passion.”); see also United States v. Browner,
889 F.2d 549, 552 (5th Cir. 1989) (“The malice that would otherwise attach is
negated by the fact that the intentional killing occurred in the heat of passion in
response to a sufficient provocation.”) (citing Scafe, 822 F.2d at 932). Thus, we
cannot conclude that the instruction was an erroneous statement of law, much less
plainly erroneous.
III
At the close of trial, defendant requested that the jury be instructed on the
lesser included offense of involuntary manslaughter, which is defined as the
“unlawful killing of a human being without malice . . . [i]n the commission of an
unlawful act not amounting to a felony, or in the commission in an unlawful
manner, or without due caution and circumspection, of a lawful act which might
produce death.” 18 U.S.C. § 1112(a). Defendant tendered a proposed instruction
and objected to the district court’s refusal to so instruct the jury. See R., Vol.
VII, at 421. On appeal, he claims that by not instructing on involuntary
manslaughter, the district court abused its discretion.
A lesser included offense instruction is to be given when “[1] there is a
proper request for one; [2] the lesser included offense consists of some, but not
all, the elements of the offense charged; [3] proof of the element or elements
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differentiating the lesser and greater offenses is a matter in dispute; and [4] a jury
could rationally convict on the lesser offense and acquit on the greater offense.”
United States v. Abeyta, 27 F.3d 470, 473 (10th Cir. 1994). “On appeal from a
trial court’s application of the proper test, we review for abuse of discretion ‘[t]he
decision of whether there is enough evidence to justify a lesser included offense
charge. . . .’” Id. (quoting Chapman, 615 F.2d at 1298.)
It is undisputed that defendant properly requested an involuntary
manslaughter instruction, see R., Vol. VII, at 421, and that involuntary
manslaughter is a lesser included offense of the offense charged, see United
States v. Quintero, 21 F.3d 885, 890-91 (9th Cir. 1994). Defendant claims that
the closely-related third and fourth prongs of the Abeyta test are satisfied because
sufficient evidence was presented at trial to support a jury finding that either he
killed the victim in the commission of a misdemeanor or, alternatively, that the
killing was the result of self-defense.
Defendant’s first argument is that an instruction on involuntary
manslaughter was required because the death of Russell John occurred during the
commission of aggravated battery, a misdemeanor under New Mexico law. See
N.M. Stat. Ann. § 30-3-5(B) (Michie 1978) (defining misdemeanor aggravated
battery as infliction of an injury not likely to cause death or great bodily harm, but
which does cause painful temporary disfigurement or temporary loss of the
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functions of an organ or member). Defendant’s rationale is that the Indian Major
Crimes Act provides that if a crime made applicable under the Act is “not defined
and punished by Federal law in force,” the offense “shall be defined and punished
in accordance with the laws of the State in which such offense was committed . . .
.” 18 U.S.C. § 1153(b). This argument ignores the fact that both manslaughter
and assault are defined and punished by federal law. See 18 U.S.C. §§ 1112
(manslaughter) & 113 (assaults). The assault that resulted in the death of Russell
John is a felony under federal law. See 18 U.S.C. §§ 113(a)(6) (assault resulting
in serious bodily injury) & 1365(g)(3) (defining “serious bodily injury” as
involving substantial risk of death or extreme physical pain); see also United
States v. Hatatley, 130 F.3d 1399, 1404 (10th Cir. 1997). We note that defendant
does not contend that the assault which resulted in the death of Russell John could
be characterized as a misdemeanor under federal law.
Alternatively, defendant contends that the lesser included offense
instruction was required because the evidence supported a jury verdict that he
killed Russell John in the commission of a lawful act in an unlawful manner — an
“imperfect or equivocal assertion of self defense.” Appellant’s Br. at 15.
However, no evidence whatsoever was presented at trial that defendant acted in
self defense. Defendant testified on his own behalf, and on direct examination he
was asked to describe how the fight began. He replied,
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It — it all started when Mr. John kept asking me to make him a
[beer] run, and I — but I kept telling him that it wasn’t my truck, that
I wasn’t driving, and that it was well past closing time.
So he kept asking me, and asking me to make him a run, and
once in a while he would leave. He’d walk off from me, . . . but he’d
come back and ask me again, and I’d tell him the same thing.
But after a [] while he started to get closer where — which he
would come up to my face or he’d be so close to my face that he’d be
spitting on me and to try to tell me to make him a run.
So I — I warned him. I told him, [d]on’t do that, because that
is something I don’t like people doing. So I slightly pushed him
away with my forearm the first time, and he kept — he kept doing
that. He kept doing the same thing. So I pushed him away several
times, and upon which I believe the last — the last push I gave him,
he tripped over his feet, he fell over, and he got back up, and he
started to fight — or he punched Arvin, and Arvin punched back, I
guess, putting him in a daze.
R., Vol. VI, at 350. Defendant admitted punching Russell hard in the face and
kicking him. Id. at 351-52. He also testified that Russell did not hurt him while
resisting his blows. Id. at 353. On cross-examination, the prosecutor asked
defendant if Russell was punching back when defendant was kicking him. Id. at
369. Defendant answered no, and admitted that Russell was a “steady target.” Id.
We find no abuse of discretion in the district court’s decision that there was no
evidence to support a rational jury finding that defendant was acting in self-
defense, even if imperfectly or unlawfully.
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IV
Defendant claims that the district court erred by refusing to grant him an
offense level reduction for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1. We review the district court’s decision not to grant a reduction for
acceptance of responsibility for clear error. United States v. McMahon, 91 F.3d
1394, 1396 (10th Cir.) cert. denied, 117 S. Ct. 533 (1996). Defendant must prove
by a preponderance of the evidence that he is entitled to the offense level
reduction. Id. at 1396-97.
Section 3E1.1 of the Sentencing Guidelines provides for a two level
decrease “[i]f the defendant clearly demonstrates acceptance of responsibility for
his offense.” The commentary to this section states, “[t]his adjustment is not
intended to apply to a defendant who puts the government to its burden of proof
at trial by denying the essential factual elements of guilt, is convicted, and only
then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, application note 2.
The commentary also notes that “[i]n rare situations a defendant may clearly
demonstrate an acceptance of responsibility for his criminal conduct even though
he exercises his constitutional right to a trial. . . . In each such instance, however,
a determination that a defendant has accepted responsibility will be based
primarily upon pre-trial statements and conduct.” Id.
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Defendant contends that a reduction of his offense level is merited because
he cooperated with the homicide investigation and testified at trial, admitting that
he was an alcoholic and that he had punched and kicked the victim. Admission of
wrongdoing, however, is insufficient to entitle the defendant to an adjustment for
acceptance of responsibility. See McMahon, 91 F.3d at 1397.
Defendant, at trial, contested the factual elements of his guilt. The
defense’s theory of the case was that the victim’s death was caused, not by
defendant’s actions, but by those of Arvin Benally or one of the other individuals
present the evening of the homicide. See R., Vol. VI, at 339. Defendant, when
he testified, also denied that he had the requisite intent to commit murder. Id. at
361. This is not the rare situation in which a downward adjustment is merited
even though defendant exercised his right to a trial. Defendant has failed to meet
his burden of showing entitlement to the adjustment and we conclude that the
district court acted properly.
For the foregoing reasons, the district court’s judgment is AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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